Opinion
No. 1270 C.D. 2014
06-18-2015
L. H. and T. H., Petitioners v. Department of Public Welfare, Respondent
CASE SEALED
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
L.H. and T.H. (Grandparents) petition for review of an adjudication of the Secretary of Public Welfare denying their request for reconsideration of a decision of the Department of Public Welfare (Department) that, following remand, denied their appeal to expunge indicated reports of child abuse and remove their names from the ChildLine Registry. Their request for reconsideration asserted that the Department did not follow this Court's remand order. In their brief to this Court, Petitioners do not identify any error in the Secretary's denial of reconsideration and, instead, challenge the underlying merits of the case. We affirm.
A total of four indicated reports were issued. Grandparents each received two indicated reports of abuse because two children were abused.
ChildLine is a unit of the Department that operates a statewide toll free system for receiving and maintaining reports of suspected child abuse, along with making referrals for investigation. 55 Pa. Code §490.4. The ChildLine Registry is maintained in accordance with the Child Protective Services Law, 23 Pa. C.S. §§6301-6386.
The minor children in this case are S.H., the biological child of D.K. (Mother) and D.H. (Father), and G.K., the biological child of Mother from a prior relationship. Father is Grandparents' son, making Grandparents the paternal grandparents of S.H. and step-grandparents to G.K.
S.H. was born in 2006.
G.K. was born in 2000.
In 2008, Father was registered on Childline by the Bedford County Office of Children and Youth Services (CYS) with an indicated status for having indecent sexual contact with D.S., a female child, while she was a visitor in Father's home. Father was charged criminally and because Father, along with Mother, resided with S.H. and G.K., a safety plan was implemented by CYS for the two children.
Under the safety plan, Father was prohibited from having unsupervised contact with S.H. and G.K. When Mother worked on weekends, Grandparents babysat S.H. and G.K. Under the CYS safety plan, Grandparents agreed not to allow Father unsupervised contact with S.H. and G.K. Whether watching the children in their own home or at Father's home, they agreed to stay with the two children until Mother returned from work.
CYS discovered, in the course of an investigation, that Grandparents had violated the safety plan by allowing Father to be alone with the children on numerous occasions. On some of these occasions, Father sexually abused both S.H. and G.K. CYS concluded that Grandparents had committed child abuse by omission and filed indicated reports against Grandparents, which were entered on the Childline Registry.
Abuse by omission occurs when a reasonable person in the position of caretaker "knew or should have known that acts of abuse were occurring and ... failed to take steps to remove the child from harm's way." Bucks County Children and Youth Social Services Agency v. Department of Public Welfare, 616 A.2d 170, 174 (Pa. Cmwlth. 1992). --------
Grandparents appealed the indicated reports of child abuse and a hearing was held before an Administrative Law Judge (ALJ). Grandparents stipulated to the admission of evidence at the hearing that documented Father's abuse of the children. Grandparents testified that they were not guilty of child abuse by omission because the children were not left alone with Father while in their care.
Mother testified that she was aware Grandparents were leaving the children alone with Father because she would discover Father alone with the children when she returned home from work. Mother pleaded guilty to criminal charges of endangering the welfare of the children because she was aware that Grandparents had allowed Father to be alone with the children. In addition, G.K. testified that Grandparents often left her and S.H. home alone with Father and that he sexually abused them on some of these occasions.
The ALJ found Grandparents not credible and credited the testimony of Mother and G.K. The ALJ found that Grandparents knew Father had been charged criminally with sexual abuse of a child; had met with CYS and were advised of the risk to the children of being allowed unsupervised contact with Father; and signed a safety plan agreeing not to permit Father to have unsupervised contact with the children. In spite of this, Grandparents left the children alone with Father, who used the opportunity to abuse the children. The ALJ recommended that Grandparents' appeal be denied.
The Department adopted the ALJ's recommendation in its entirety. Grandparents appealed to this Court, and on June 6, 2013, this Court vacated the Department's order and remanded for a new determination as to whether the allegations of abuse by omission were established by "clear and convincing evidence." L.H. and T.H. v. Department of Public Welfare (Pa. Cmwlth., No. 1381 C.D. 2012, filed June 6, 2013).
In G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012), this Court held that CYS had the burden of proving abuse under the clear and convincing standard of proof. However, the Pennsylvania Supreme Court reversed this Court's decision in G.V. v. Department of Public Welfare, 91 A.3d 667, 674 (Pa. 2014). By the time the Department was ready to address the remand of Grandparents' appeal in this case, this Court's holding in G.V., 52 A.3d 434, had been reversed. Accordingly, on remand the ALJ reissued the original decision, which was adopted by the Department in its entirety.
Grandparents filed a request for reconsideration, asserting that the Department violated this Court's remand order requiring it to decide the case under the clear and convincing evidence standard. On June 26, 2014, the Secretary of Public Welfare denied reconsideration. The Secretary reiterated that based on the Supreme Court's holding in G.V., 91 A.3d 667, the original adjudication was decided under the correct standard of proof.
On July 25, 2014, Grandparents filed a petition for review to this Court, asserting that substantial evidence does not support the Department's finding that they committed child abuse by omission. The Department's order was entered on May 14, 2014, approximately 60 days before Grandparents filed their petition for review.
Appeals of agency orders must be filed within 30 days of their issuance. The Pennsylvania Rules of Appellate Procedure state, in relevant part, as follows:
A petition for review of a quasijudicial order, or an order appealable under 42 Pa.C.S. § 763(b) (awards of arbitrators) or under any other provision of law, shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order.PA. R.A.P. 1512(a)(1). The filing of a petition for reconsideration with the agency head does not extend this 30-day appeal period. Muehleisen v. State Civil Service Commission, 443 A.2d 867 (Pa. Cmwlth. 1982), affirmed without opinion, 461 A.2d 615 (Pa. 1983). Therefore,
when a petition for review is filed more than thirty days beyond the date of the [agency's] decision ... we may not review the merits of the initial adjudication and order, and our review is limited to the denial of the petition for reconsideration.Fleeher v. Department of Transportation, Bureau of Driver Licensing, 850 A.2d 34, 36 (Pa. Cmwlth. 2004). The decision to grant or deny a request for reconsideration is a matter of administrative discretion, and will be reversed only for an abuse of that discretion. Modzelewski v. Department of Public Welfare, 531 A.2d 585, 587 (Pa. Cmwlth. 1987).
Grandparents have appealed the Secretary's denial of reconsideration. However, in their brief, they do not identify how the Secretary abused her discretion in denying reconsideration. Instead, Grandparents address the merits of the Department's May 14, 2014, order, which is beyond the scope of our appellate review.
Accordingly, we affirm the Secretary's denial of Grandparents' request for reconsideration.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 18th day of June, 2015, the order of the Secretary of Public Welfare, dated June 26, 2014, denying reconsideration of the May 14, 2014, order of the Department of Public Welfare is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge